Offensive social media posts end in unfair dismissal

An employment tribunal has found that an employer’s decision to dismiss an employee was unfair due to procedural flaws, despite agreeing that the actions which led to the dismissal were inflammatory and offensive.

The employee made several posts on her Facebook page that related to Black Lives Matter. These included one post which suggested that people taking part in Black Lives Matter protests should be hit with “tear gas, bullets and water cannons”. The Facebook page listed the name of the user’s employer.

Colleagues complained about the posts, taking screenshots and reporting them to management.

The tribunal agreed that the posts had a significant impact on colleagues, including those who were black. Some said they would be hesitant to work with the employee again in light of the views she expressed on racial issues.

At a disciplinary interview it was suggested by a manager that the employee was not remorseful about the posts. The employee argued that she could not be racist because she had two mixed-race children and that other members of her family were black. She also argued that the Facebook posts were not a workplace matter as they were put on her private page (which both the employer and the tribunal disagreed with).

She was dismissed, and on appeal, argued that the organisation had breached her right to freedom of speech under article 10 of the European Convention of Human Rights, as well as her right to private life. The appeal outcome was that she was “entirely unrepentant” and suggested that if she had taken a different view then the “outcome would have been very different”.

During the employment tribunal it was clear that the only evidence the appeal manager had seen was the four relevant Facebook posts, and he had not looked at the sizeable brief that had provided previously. It also felt his attitude towards the union rep had affected his decision to reject her appeal. The tribunal also found the appeal had failed to consider the employees long and unblemished career.

The tribunal agreed that employer had restricted the employee’s right to freedom of speech when it dismissed her for the Facebook posts, but felt this decision was justified as the posts had deeply offended other staff members and presented a reputational issue for the organisation.

An important part of this case was the tribunal’s concern about appeal hearing manager who was “ill-equipped to conduct this type of hearing”. The tribunal found that the dismissal was unfair, but her compensation for this was reduced by 75% because of her “blameworthy” conduct. The outcome was £3,564.25 for unfair dismissal.

This case once again highlights the importance of ensuring that those who carry out disciplinary procedures are adequately trained. 121 HR Solutions can deliver management training in this subject and can be contacted on 0800 9995 121.

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